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Bava Metzia, 103

1) THE MINIMUM NUMBER OF "FIELDS"

QUESTION: The Gemara says that one who borrows a hoe and says to the owner that he is borrowing it "in order to hoe orchards with it" is entitled to hoe as many fields as he wants.

This Gemara seems to contradict the Gemara in Bava Basra (61b) that states that when a field owner says to a buyer, "I am selling *fields* to you," the buyer is entitled to take only *two* fields, because the minimum number of the plural "fields" is two. Why, then, may the borrower of the hoe use the hoe for as many fields as he wants? He should only be permitted to use it for two fields! (TOSFOS DH Pardisi)

ANSWERS:

(a) TOSFOS in our Sugya answers that there is a difference between a Sho'el (a borrower) and a Loke'ach (a buyer). Our Gemara is referring to a person who *borrowed* a hoe. In such a case, the Sho'el becomes "Muchzak," and thus we accept his claim that when he said the plural word, "fields," he meant many fields and not just two. The Gemara in Bava Basra, on the other hand, is referring to a person who *bought* fields. In such a case, the *seller*, and not the buyer, is considered to be "Muchzak," and thus the seller's claim that the he is entitled to claim that the intent of the plural word "fields" means only two fields.

This principle that Tosfos expresses -- that a Sho'el is considered to be "Muchzak" with the object that he borrowed -- seems to contradict a Sugya earlier. Rav Nachman (102b) states that in the case of a rented house, the *owner* is considered to be the one who is "Muchzak," and not the borrower! This contradicts our Gemara, according to the explanation of Tosfos.

(b) Because of this question, TOSFOS in Bava Basra (61b, DH Ar'asa) does not accept this answer, and does not accept the assertion that the Sho'el is considered to be "Muchzak." Instead, Tosfos there explains that when a person borrows an instrument to use for working on his "fields," it is the normal manner to use an instrument for many fields, and not to limit it to the minimum number of two. When one sells "fields," on the other hand, it is certainly not the intent of the seller to sell all of his fields, and thus it is assumed that he is selling only the minimum number of two.

How does Tosfos here reconcile his explanation -- that a Sho'el is considered "Muchzak" -- with the statement of Rav Nachman, who says that a Sho'el is not considered "Muchzak?" Tosfos differentiates between Karka and Metaltelin. When Rav Nachman states that the owner is considered "Muchzak," that applies only to *land* (or a house). When one borrows a movable object, though, the Sho'el is considered to be "Muchzak." Tosfos explains that the difference between Karka and Metaltelin is that the person who rents Karka cannot hide the Karka, and therefore the owner is still considered "Muchzak." An item of Metaltelin, in contrast, can be easily concealed, and thus the Sho'el (or Socher) is considered to be "Muchzak."

OPINIONS: The Gemara states that when a person rented a specific house ("Bayis Zeh") from a homeowner and before the rental period was over, the house collapsed, the owner does not have to provide the tenant with another house. Must the tenant, though, pay the rental fee in such a case?

(a) The RITVA in the name of the RE'AH maintains that a rental agreement is tantamount to a sale. In the case of a sale, if the house collapses after the buyer purchases it, it is his loss and he still must pay for the house (if he has not paid for it already). Similarly, the tenant must pay the rental fee, since the house collapsed while it was in his possession. (The HAGAHOS ASHIRI 6:10 says that this is also the view of RASHI, as he infers from the words of Rashi (DH Azda) who says that "it is the Mazal of the Socher that caused [the loss]."

(b) The RAMBAN argues and maintains that the tenant certainly is not obligated to pay more than the actually use that he obtained from the house (that is, he pays only for the number of days that he used the house until it collapsed). (This is also the view of the RAN and ROSH.)

RAV ELCHANAN WASSERMAN (Kovetz He'oros 53:3) explains that the Machlokes between the Ritva and the Ramban involves a basic dispute about how to view a rental agreement. The Ritva views a rental agreement (Sechirus) as an acquisition of the rented object (in our case, a house) for the sake of its use ("Dekel l'Perosav"). Thus, even if he was not able to make use of the object in practice, he is still obligated to pay for his acquisition of the object. The Ramban, on the other hand, views Sechirus as a payment for the use of the object, and not for the object itself. The use of the object is one type of "Peros" which the object yields. Thus, the Socher is obligated to pay only for the "Peros," or use, which he actually received from the object.

Rav Elchanan (53:6) points out that we find a slight contradiction in the opinion of the Ramban. The Ramban in Kesuvos (59a) states that one who rents a field is considered to have a partial ownership in the field, and as such he can be Makdish his share of the field. The Ramban there even refers to the Socher's ownership as a "Kinyan ha'Guf l'Peros," which seems to be exactly the way the Ritva refers to Sechirus! The Ramban there seems to contradict his opinion in our Sugya where he says that Sechirus is merely a right to use the object. Rav Elchanan leaves this question unanswered.

The CHAZON ISH (Bava Kama 23:10) writes that the Ramban could hold that Sechirus is a temporary sale, like the Ritva, and as he explains in Kesuvos. However, he holds that the Socher does not have to pay for the rest of the rental after the house collapses, because the agreement was that he would pay for the house as long as it existed.

103b

QUESTION: The Beraisa states that in a place where the prevalent custom is to cut the produce from the field, the sharecropper is not permitted to uproot it, and in a place where the custom is to uproot the produce, the sharecropper may not cut it. The Beraisa adds that neither the field owner nor the sharecropper may deviate from the local custom without the other's consent. The Gemara goes on to explain the reason why neither may deviate from the local custom. Since either one might sometimes prefer that the produce be cut in a particular way, the local custom must be followed. Where the custom is to cut the produce and the sharecropper wants to uproot it, the owner can say that he wants the custom to be followed because he wants the roots to remain in the field in order to fertilize the soil. When the owner wants the produce to be uprooted, the sharecropper can say that he does not want to toil so much. Similarly, where the custom is to uproot the produce and the sharecropper wants to cut it, the owner can say that he wants the land to be clean of roots. When the owner wants the produce to be cut, the sharecropper can say that he needs the roots as feed for his animals. Hence, neither may deviate from the local custom.

Why does the Gemara need to give reasons for why neither party may deviate from the local custom? The fact that it is the local custom is reason enough to prevent either party from deviating without the other's consent (as we see in other places in the Gemara, wherever it says "ha'Kol k'Minhag ha'Medinah")! (NIMUKEI YOSEF)

ANSWERS:

(a) The TOSFOS YOM TOV answers that one may force the other party to follow the prevalent custom only when that custom has a logical reason behind it. One cannot force someone to follow a custom with no reason, for that is no better than a "Minhag S'dom." Therefore, the Gemara here needs to give the logical basis for the custom, in order to explain why each party can force the other to abide by the Minhag. Similarly, the SHITAH MEKUBETZES writes that in a place where the custom has no basis, one can force the other to deviate from the custom because of "Zeh Neheneh v'Zeh Lo Chaser."

(b) The ARUCH HA'SHULCHAN (CM 320:5), as cited by the D'VAR YAKOV here, writes that the Gemara gives the reasons why each one may force the other to follow the Minhag because there is a practical ramification based on the reason that the Gemara gives. In a place where the custom is to cut, and not uproot, the produce, the owner may force the sharecropper to follow the custom *only* when the field was rented for one year. Since the owner's reason for wanting the sharecropper to follow the practice and to cut the produce is in order for his land to be fertilized, this applies only when the field will revert back to the owner's possession after these crops are harvested. When the field is rented out for two or more years -- and thus the sharecropper will be the one who has to plant the field the following year -- the owner cannot force the sharecropper to follow the Minhag, and the sharecropper may choose to uproot, and not cut, the produce.

QUESTION: The Beraisa states that in a place where the prevalent custom is to cut the produce from the field, the sharecropper is not permitted to uproot it, and in a place where the custom is to uproot the produce, the sharecropper may not cut it. The Beraisa adds that neither the field owner nor the sharecropper may deviate from the local custom without the other's consent.

The Gemara goes on to explain the reason why neither may deviate from the local custom. Since either one might sometimes prefer that the produce be cut in a particular way, the local custom must be followed. Where the custom is to cut the produce and the sharecropper wants to uproot it, the owner can say that he wants the custom to be followed because he wants the roots to remain in the field in order to fertilize the soil. When the owner wants the produce to be uprooted, the sharecropper can say that he does not want to toil so much.

Similarly, where the custom is to uproot the produce and the sharecropper wants to cut it, the owner can say that he wants the land to be clean of roots. When the owner wants the produce to be cut, the sharecropper can say that he needs the roots as feed for his animals. Hence, neither may deviate from the local custom.

Why does the Gemara not give the same reason for the owner as it gives for the sharecropper? That is, the Gemara says that where the custom is to uproot the produce and the owner wants it to be cut, the sharecropper can say that he needs the roots as feed for his animals. The same claim can be made by the owner when the sharecropper wants to cut it and not uproot it! The owner should be able to force the sharecropper to follow the local custom and uproot the produce by claiming that he needs the roots as feed for his animals (since the owner receives a share of whatever the sharecropper produces, including the roots)! (Acharonim)

ANSWERS:

(a) The MAHARSHA answers that the Gemara indeed could have given this as the reason why the owner may force the sharecropper to follow the local custom. However, the Gemara gives a better reason why the owner may force the sharecropper to uproot the produce (for this reason applies whether or not the owner has animals or wants the roots as feed for them).

(b) The RITVA, TORAS CHAIM, and RASHASH answer that the Gemara here is referring to all cases of sharecropping -- whether it is a case of "Arisus" (in which the sharecropper gives a percentage of the field's produce to the owner) or a case of "Chakirus" (in which the sharecropper gives a lump sum per year to the owner, regardless of how much the field produces). Since, in a case of "Chakirus," the owner of the field does not receive what grows in the field, he cannot claim that he wants the produce to be uprooted so that he can feed the roots to his animals, since he will not receive the roots.

(c) The TORAS CHAIM answers further that the owner cannot use this claim to force the sharecropper to follow the local custom and uproot the produce, because even if the sharecropper cuts the produce and leaves the roots in the ground, the owner will still be in possession of the roots and he will be able to let his animals eat from it in the ground. (The sharecropper, on the other hand, may claim that he wants to uproot the produce in order to feed the roots to his animals, because he is not permitted to bring his animals into the owner's field after the conclusion of his rental period.)

(d) The DARCHEI DAVID, cited by the D'VAR YAKOV, answers that if the owner claims that he wants the produce to be uprooted so that he will be able to feed the roots to his animals, the sharecropper can counter-claim that he will just uproot half of the field's produce in order to give the owner his share of the roots. The other half of the produce, though, he may cut, leaving the roots in the ground. Therefore, the Gemara says that the reason the owner may force the sharecropper to uproot *all* of the produce is because he wants his field to be clean.